Gabrielle Giffords

Diogenes · Post by **Diogenes** » Wed Jan 12, 2011 6:31 pm

Skipjack wrote:Sorry, but according to the Geneva convention a unlawful combatant should be treated by the laws of the detaining country. That is very simple. Plus, I regard it as a human right violation, no matter what. I am not allone with this, most Europeans do and the US is suffering a huge imageloss because of things like Guantanamo and a few other things that happened in the wake of 9/11. The whole Wikileaks debacle was for once a result of this and it has done nothing to make the US look any better in the public eye. The reaction of the US does not help either.
The US is definitely not the "good guy" anymore as it used to be until the end of the cold war. Now, you may be OK with this now, but it may happen to bite you in your lower back one day.

I find it amusing that the Europeans, with the most dangerous threat breathing down their necks, find the time to worry themselves with the legal technicality status of the aforementioned threat's killers imprisoned in Guantanamo.

I would urge that they be released immediately into the custody of such concerned Europeans, with the provision that said Europeans must keep them in their (concerned Europeans) country.

ladajo · Post by **ladajo** » Wed Jan 12, 2011 9:32 pm

Skipjack wrote:I am trying to see your point, but I can not. I think there are many ways to rationalize human rights violations. People have historically done it and they still do it all the time. It may seem justified to some americans, but I think much of the rest of the world does not agree...
Quite honestly being married to an american and still having the US as my future place to live (if I ever get to), I am worried about the way the rest of the world is loosing respect for the US. I talk to a lot of people here, from all over the world and it is defending the US is NOT easy.
Things got a bit better for a brief period after Obama was elected, but that did not last long. Things are brewing here in Europe and there may be a time coming very soon when US military is not welcome here anymore. E.g. I was reading a german computer game forum recently and people here were openly discussing the ongoing occupation by US forces and that they are not happy about that. 20 years ago, that was not an issue.

I understand your concerns for universal human rights. However, the reality of today's world, not tomorrow's is what we must deal with.
The problem I see today is to many folks arguing with partial knowledge and loud voices in arenas they do not fully get. I agree that this provides pressure to make things better for tomorrow, and am fully in support of it (free speech).
However, case in point, please show me where any of the Geneva Conventions address the term "unlawful combatant", and where in the Geneva conventions, does the idea of sovereignty and state's rights get over ridden. In fact, the conventions address that the rights of detained persons reside in two tenants, 1) Universal Human Rights - not defined and 2) The laws of the detaining state (that are hopefully in line with Universal Human Rights). The Conventions do not spell out Human Universal Rights as the core idea, but do hint at it clearly.

The point is all about Just War and its conduct. I agree that Guantanamo has been handling very badly in the PR realm. I do not agree that it or somethign like it is not neccessary. These people operate outside the rule of civilization, and in that have their strength. If you put them in a position to use civilization against itself, that is their intent and desire, because they know they will be able to use the system against itself for their goals. How many detainees have been released only to go right back to the conflict at hand, only to get rolled up again by someone. More than one.
If you put these folks on trial, IAW with US standards, chances are they will be jailed and released in a short amount of time, if at all. Our legal system currenlty goes to great lengths courtesy of the left, and its fuzzy views of right and wrong, to protect the rights of criminals over victims. The idea of victim's rights in US law is very obscure, and pruposely kept so by the left. They feel it would color "impartial" legal proceedings. The other really big deal about bringing these folks to civilian trial is the precedence it would set inthe US regarding the military, war, and legal liability. The US is one of the few countries that maintains a seperation between civil liability and military crimes. We do not try our soldiers in civilian courts unlike elsewhere. This is based is the Just War principle as well, and maintains the status of combatants verses non-combatants. It is an important principle.
I think Diog has a point, if you think your system is better, then you take custody of them and deal with them. But when they come back later and burn down your court and blow up the girl's school across the street, how will your legal system explain that? As their Universal Human Right?

Skipjack · Post by **Skipjack** » Wed Jan 12, 2011 11:35 pm

The problem is that the US claims that it is morally superior and that it brings human rights into the world. If you claim such things, you have to surpass everyone else in your respect of human rights and you really have to shine. Otherwise you look like a hypocrit.

ladajo · Post by **ladajo** » Thu Jan 13, 2011 2:48 am

I disagree that the US claims it is morally superior.
That is a misguided interpretation.
What the US is is more open to discussion about right and wrong.
I think Bush captured it well in his 5 Jan, 1991 letter to Saddam prior to the UN Forces attack, where he said, "You may be tempted to find solace in the diversity of opinion that is American democracy. You should resist any such temptation. Diversity should not be confused with division. Nor should you underestimate, as others have before you, America's will."

The issue in Europe is you have diversity and division. And you interpret America's ability to overcome division as a touted "moral superiority" to use your words. That is a misunderstanding.
Unlike Europe, America can and does pull together accepting diversity in its ability to conquer division. This is something that so far historically has escaped Europe in understanding and execution.
America's primary strength is in cohesion through diversity. Are we perfect? No. Do we know it? Yes Are we Ok with it? Yes and no. We are always seeking a better way. We are not, by our founding priciples, stuck in tradition. I think that is what continues to rub the rest of the world the wrong way, as it did from day one. Our biggest weakness is to understand why other cultures cling to the past. It escaped us when the founding fathers wrote the Declaration of Independance, proclaiming Universal Human Rights with "certain inalienable rights". (hat tip to The Magna Carta)
Is Guantanamo the right answer? Probably not. Is it the best answer for the circumstances? Probably yes. If you think you have a better answer, I am sure that our government will be willing to let your government try it. However, I am pretty sure that your government is not willing to take the risk, nor make the offer.
It is easy to play Armchair General. It is not easy to assume real risk and act. Is it an envy or fear that brings criticism without responsibility? Or is it an expression of cowardess or ignorance? I do not know. But I do know that if you take a stand, it requires that you be willing to act on it. If not, you become the Iraqi Minister of Information during Gulf II, or as we knew him, "The Daily Clown Show". Where is your government and people in this? Clown or not? And that is not meant as a question nor statement of "moral superiority", it is truly asking, "who are you?" in a very basic sense.

TDPerk · Post by **TDPerk** » Thu Jan 13, 2011 11:48 am

Skipjack, it's actually your problem and not mine. You need to demonstrate that the usual and until this conflict entirely uncontroversial practice of keeping combatants taken in a war until the end of hostilities is a practice which violates any human rights. You can assert it, you haven't shown it, neither have you shown that the usual and customary practice of having the military make the determination of whom to seize--which practice is usual and customary and the legitimacy of which has not been questioned until this conflict--is one which is contravention either of any fundamental and unacknowledged human rights, or any rights which have been established by treaty.

Skipjack · Post by **Skipjack** » Thu Jan 13, 2011 12:34 pm

The problem is that it is not certain that they actually are combatants.
Some of them were not even cought on the battlefield.
And actually it is YOUR problem, more than it is mine. I am not a US citizen. If I cared less about about what the rest of the world thinks of the US, then I would not give a frack about YOUR problems. But, I do care for some odd reason.

ladajo · Post by **ladajo** » Thu Jan 13, 2011 1:41 pm

In this case the "Battlefield" is up for interpretation on many levels (still).

The irony in your argument is that these guys claom to be combatants, while not meeting international accepted practice, and even UN ruling regarding customary international law on what makes a combatant. When the purpose serves, they also claim to be civilian non-combatants.

I see you have an issue with renditions, but what about folks that have been rolled up by non-US nations, and then given to the US to hold because they (the capturing state) don't want to?

Edit: fixed spelling and grammer (more or less)

Skipjack · Post by **Skipjack** » Thu Jan 13, 2011 3:19 pm

Look, I have no problem with having these people imprisoned, even executed AFTER they have had a fair trial.
I can not accept the fact that people can be held indefinitely without a fair trial. It gives room to abuse and it severely attacks the principle of the separation of powers. In this case it gives all the power to the military and that is a very dangerous thing to do.
If you want to hold them captive, give them a trial. If you do not want to give them a trial, then it looks like you have no reason to hold them captive and that gives your opponents room to attack you.
Personally I do not see the problem with giving people a fair trial.
Clearly, you must have plenty of evidence for their guilt. So a trial should be quick and the judgement clear.

ladajo · Post by **ladajo** » Thu Jan 13, 2011 4:33 pm

Here in lays the rub.
These are detainees resulting from war and conflict. They are not detainees from law enforcement.

Clear precedent and international customary law regarding conflict applies. They have only a right to eventual tribuneral at the discretion of the detaining state. They have even less "rights" in that sense as they are not meeting the defintions of legal combatants nor non-combatants. They are in a sense rogue conflict participants.

You keep wanting to think of them as having been arrested for an alleged breaking of the law. They have not. This is not a civil matter at all. Does Austria try foreign soldiers in civil court to determine what to do with them during or after a conflict? I think not.

Did you read the link I gave you for Just War?

In the bigger picture, I do agree that some work needs to be done in this arena on the international level. What you seem to be arguing is the difference between a conflict and law enforcement. In "The New World Order" with "One World Government" your position would be more applicable. But that is not what we have today, or tomorrow even.
I refer to my questions above regarding Just War and Combatants that you have not answered.
I hope at least that you have learned that "Illegal Combatants" are not addressed in the Geneva Conventions as you claimed.

Skipjack · Post by **Skipjack** » Thu Jan 13, 2011 5:04 pm

I think that you are assuming that all of them were arrested shooting weapons on the battlefield. This is not the case. And therein lies my problem. It is a very slippery slope, IMHO. If you keep expanding the battlefield and combatant term like that, where do you end?
Soon you will have the military raiding peoples houses arresting everyone and putting them into prisons, holding them indefinitely and subjecting them to torture and that reminds me of certain times that we all do not want to come back.

TDPerk · Post by **TDPerk** » Thu Jan 13, 2011 5:28 pm

"I think that you are assuming that all of them were arrested shooting weapons on the battlefield. This is not the case."

I think you are assuming two things, one that they need to be seized with smoking weapons in their hands and two the the ones that weren't taken under such circumstances cannot be combatants.

An army cook in a uniform with just a spoon in his hand is a combatant. An Al Qaeda cook without a uniform is a combatant and an illegal one at that.

"If you keep expanding the battlefield and combatant term like that, where do you end?"

We aren't expanding the battlefield, in the scope of it we are reactive to AlQaeda, going where they go first. We also are not expanding the term combatant. There are legal combatants as described in the Geneva and like treaties, and these are a subset of combatant; all combatants who are not legal ones are illegal ones.

"Soon you will have the military raiding peoples houses arresting everyone and putting them into prisons, holding them indefinitely and subjecting them to torture and that reminds me of certain times that we all do not want to come back."

I have little doubt the house raiding has already or should in the future continue to happen, but I think the torture never has in the course of this conflict as a matter of policy. Also, I think it is highly unlikely everyone in a household would be seized, only the persons whom our military have intelligence on to show they are violently partisan and not on our side.

"It gives room to abuse and it severely attacks the principle of the separation of powers."

Except you are imagining a separation of powers where none has ever existed before. Militaries have always taken prisoners from time to time, and generally held them until the conflict ends, or they are paroled or exchanged--and parole or exchange is solely done at the mutual discretion of the actors involved. We are free to choose not to exchange or parole AlQaeda prisoners.

Skipjack · Post by **Skipjack** » Thu Jan 13, 2011 5:55 pm

Militaries have always taken prisoners from time to time, and generally held them until the conflict ends, or they are paroled or exchanged--and parole or exchange is solely done at the mutual discretion of the actors involved.

Yeah, in actual warzones where there explizitely is martial law declared. I have not seen martial law declared all over the US, has it?

Again, this is giving way to abuse. Someone will accuse someone of being an Al Quaeda agent and this person will "disappear" into some camp somewhere where the person will be tortured as are the people in Guantanamo. And since this person has no rights whatsoever, he will never be able to clear his name and set things right. To avoid situations just like that, the civilized world has developed a complex system involving a separation of powers and rights for the accused person. You can argue whatever you want, but this is the way it is.
All I can say is that giving to much power into the hands of a single force is a dangerous thing to do. Power corrupts.

Skipjack · Post by **Skipjack** » Thu Jan 13, 2011 5:57 pm

Does Austria try foreign soldiers in civil court to determine what to do with them during or after a conflict? I think not.

We have stayed out of conflicts for a long time.
We got punished for human rights violations when fighting illegal combatants during the previous war, quite severely so.

Edit: worth adding that the law situations regarding illegal combatants and other issues was by far not as well defined yet back when we got punished for "dealing with them".

ladajo · Post by **ladajo** » Thu Jan 13, 2011 10:34 pm

Who ever said that Martial Law is always explicitly declared in war zones?

You are still trying to mix conflict with law enforcement. They are two seperate distinct things, and this is at the behest of the community of nations. It is called sovereignty (-5 spelling).

The issue at hand that you are arguing is that unlawful combatants are criminals, and should be dealt with by civil law. By definition, they are combatants, and thus not subject to civil law. Choosing to be a combatant, legal or not, places you in a special catagory, reserved for conflict and conflict resolution.

Please take a look at the link I gave you.

Skipjack · Post by **Skipjack** » Thu Jan 13, 2011 10:46 pm

It is called sovereignty

Thanks, I will try to remember that. My English spelling still sucks at times.

Choosing to be a combatant, legal or not, places you in a special catagory, reserved for conflict and conflict resolution.

The problem with this way of thinking is that you have a single instance that decides whether someone is a combatant and whether the same person is an illegal or legal combatant and how this person should be punished for it. I dont care about your link. It is nice theories without any practical value in this situation.
If I was being an ass, I could say that you are simply holding these people prisoners without any cause. You may argue against it, but without a court and their proofen guilt, you really have nothing to show that I am wrong. And that is my point! You can cry "combatants" all you want. People dont believe you. Where is the evidence? Where are the witnesses? Who was heard? Maybe that guy is just imprisoned because of a rumor, or because of a neighbour who he was arguing with over to loud rock music calling him a "terrorist"?
How do you know that is not the case? How do you?
You dont! And therein lies the problem!